FILED
NOT FOR PUBLICATION JUL 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TONI D. LEVINGSTON, No. 11-15566
Plaintiff - Appellant, D.C. No. 1:09-cv-00589-AWI-
SKO
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM *
CORRECTIONS AND
REHABILITATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Toni D. Levingston, a former California state prisoner, appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
exhaust administrative remedies as required by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm.
The district court properly dismissed Levingston’s action because
Levingston did not properly exhaust administrative remedies before filing his
complaint, and failed to show that administrative remedies were effectively
unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (explaining that
“proper exhaustion” requires adherence to administrative procedural rules); Sapp v.
Kimbrell, 623 F.3d 813, 826 (9th Cir. 2010) (administrative remedies are
“available” where administrative appeals are screened for proper reasons). We
construe the dismissal of these claims to be without prejudice. See Wyatt, 315 F.3d
at 1120.
The district court did not abuse its discretion in denying Levingston’s
motions for reconsideration because Levingston provided no basis for
reconsideration. See Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5
F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and
requirements for reconsideration).
Levingston’s remaining contentions are unpersuasive.
AFFIRMED.
2 11-15566